In Re A.H., A Person Coming Under the Juvenile Court Law. v. J.H

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)

March 3, 2011

IN RE A.H., A PERSON COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,v.J.H., DEFENDANT AND APPELLANT.

(Super. Ct. No. J34126)

The opinion of the court was delivered by: Hoch ,j.

In re A.H. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, father of the minor, appeals from the juvenile court's orders terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395; undesignated section references are to the Welfare and Institutions Code.) Father claims there was insufficient evidence to support the juvenile court's finding the minor is adoptable and that the benefit exception to termination of his parental rights applied. We affirm.

BACKGROUND

On June 6, 2008, Children's Services Division filed a section 300 petition on behalf of the then two-year-old minor. The petition alleged the parents had been living a transient lifestyle since 2007 and had been engaging in ongoing domestic violence. The minor's mother was continuing to permit contact with father, despite the fact that no-contact orders were in place. Children's Services Division had received reports that mother was physically abusing the minor and that father was struggling with extensive and longstanding alcohol abuse issues.

The juvenile court sustained the petition and adjudged the minor a dependent child. The minor was placed in a foster home and reunification services were ordered, including supervised visitation twice a week.

At the 12-month review hearing held in August and September 2009, the parents had participated and completed some services but had failed to make substantive progress. Father continued to engage in an "unhealthy and toxic" relationship with the mother and continued to abuse alcohol. Father had been attending supervised visits twice a week and, on the whole, the visits appeared to go well. The minor, however, did act out after visits. The juvenile court terminated reunification services and scheduled a section 366.26 hearing. Supervised visitation was reduced to twice a month in November 2009, and reduced to once a month in January 2010.

The social worker's report prepared for the section 366.26 hearing noted that the minor had been placed in his current foster/prospective adoptive home on October 8, 2009. The minor was reported to be cheerful, healthy and developmentally on-target. He did, however, demonstrate an attachment issue. He transitioned from his previous care provider to his current foster parents without any hesitation. He did not demonstrate a significant attachment to his parents, or turn to them for security. The bond the minor seemed to have developed with his parents was related to his past trauma and exposure to violence and anger while in their care. He was happy to see his parents, but was also happy to see Children's Services Division staff. He had a ready smile for most people with whom he has no relationship at all. He left his parents, caretakers and others without any emotional struggle - a reflection of his potential lack of attachment.

Supervised visits between the father and the minor had been pleasant. Father and the minor played with toys, played catch, or looked at books, with the minor directing the play. The minor was excited before visits but continued to act out after visits. After the visits were reduced, the minor made progress in the attachment process with his foster parents.

A state adoption specialist performed an adoptability assessment of the minor, concluded the minor was adoptable, and recommended termination of parental rights. The adoption specialist noted the minor's attachment issue and emphasized the minor's need to stabilize in one home. The minor's foster parents demonstrated good parenting and the ability to meet the minor's needs. They were already forming a mutual bond and the foster parents were committed to adopting the minor.

The section 366.26 hearing concluded on January 26, 2010. The juvenile court found the minor adoptable and, finding no exception to adoption applied, terminated parental rights.

DISCUSSION

I

Father contends there was insufficient evidence the minor was likely to be adopted. We disagree.

"If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted." (§ 366.26, subd. (c)(i).)

Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) "[T]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

Here, the record reflects the minor was young and in good health with no significant developmental issues. The minor had demonstrated some behavior problems in the past but his current behavior was described as typical of a child his age. He had also experienced night terrors in the past, but they had reduced with the reduced visitation and not been seen in the current foster home. His current foster parents had been with him for three months and were committed to adopting him. The minor was already forming a bond with his foster parents, even though he had not yet begun counseling for the attachment issue. The adoption specialist concluded the minor was adoptable and that termination of parental rights would not be detrimental.

There was no evidence that any of the minor's issues would necessitate specialized placement or were so severe as to pose an obstacle to adoption. Thus, substantial evidence supports the court's finding that the minor was likely to be adopted in a reasonable time. (See In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)

II

Father also argues the court should have found that the benefit exception to the preference for adoption as a permanent plan had been established. Again, we disagree.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must select one of several possible alternative permanent plans for a minor child. "'The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]" (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . ." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)

The benefit exception is codified in section 366.26, subdivision (c)(1)(B)(i), and provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The benefit to the child must promote "the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

The parent must do more than demonstrate frequent and loving contact, an emotional bond, or that the child finds the visits pleasant. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show that he occupies a parental role in the child's life and that severance of the significant and positive attachment would greatly harm the child. (Ibid.) Many factors are considered, including "'the age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs. [Citation.]'" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.) "'Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.' [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (Id. at p. 1350.)

There is evidence that father did generally visit the minor on a supervised basis. The record, however, does not demonstrate the existence of a strong and positive relationship between father and the minor outweighing the benefit of adoption.

Father asserts and emphasizes that "he lived with A[.H.] for the first two years of the child's life" and claims that during that time, he "established a strong parental bond." Due to the ongoing domestic violence between father and the minor's mother, there were several restraining orders in effect during the second half of that time which were, at least some of the time, being enforced. Thus, it is unclear from the record how much of those two years father lived with the minor. In addition, we note that the minor was in foster care for almost half of his young life.

Additionally, the record does not support father's assertion that he had established a strong parental bond with the minor. According to the most recent visitation report, the visits consisted of playing with toys, playing catch, or looking at books, with the minor directing the play. Although visits generally went well and the minor was excited before visits, the minor acted out afterwards. Additionally, the minor had not complained when visits were reduced. When the reduced visitation schedule took effect, his nightmares reduced in frequency. While the minor knows appellant is his father and called him "dad," and he enjoyed playing with father during visits, the social worker observed that the minor did not demonstrate a significant attachment to father. Father's relationship with the minor appeared to be primarily one of a friendly visitor.

Based on the record and the lack of a significant, positive parent-child relationship between father and the minor, the benefit to the minor of a safe, stable adoptive home outweighed the benefit he might derive from continued contact with father. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Thus, substantial evidence supports the trial court's ruling that the benefit exception did not apply.

DISPOSITION

The orders of the juvenile court terminating parental rights are affirmed.

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